*1128Dissenting Opinion.
Todd, J.On the 29th of November, 1873, the relator obtained a. j udgment against the parish of St. Martin for $4500, with eight per cent, interest per annum thereon from the 5th of October, 1868. No appeal was taken from this judgment. In 1875 the parish brought an action to annul this judgment, on grounds assailing its consideration, and the authority of the police jury of the parish to contract the debt on which it was rendered. This action was brought by appeal to this Court, which rejected the demand for the reason declared, “ that all the defenses to the judgment there urged might have been pleaded as defenses to the suit in which the judgment was rendered.”
See James S. Robichaud, President Police Jury, vs. Thomas W. Nelson et al., 28 An. 578.
The judgment against the parish in favor of relator, rendered in 1873, as stated, ordered the assessment and collection of a special tax sufficient to pay the amount thereof, the tax to be levied and collected, by the terms of the judgment, immediately after its rendition.
The relator alleging that, notwithstanding repeated demands, the Police Jury of St. Martin had refused to pay the judgment or assess any tax for its payment, applied to the District Judge of said parish for a mandamus to compel that body to assess and the tax collector to collect a sufficient tax to pay the debt. The mandamus was granted and made peremptory by the District Judge. An appeal was taken from his decision, and the case came before this Oourt at the last term held here (Opelousas) in 1880.
The case was heard on appeal and remanded to the lower court. The cause or reason of the remanding will be more fully understood by referring to the language of the court in the opinion rendered on the occasion, which I quote in part, the part bearing on this particular point, as follows. “ The present proceeding is instituted against the Police Jury of the parish of St. Martin, and has for its object to compel them by mandamus to assess, collect and apply a special tax for the payment of the relator’s judgment.
“ The application is resisted on two grounds :
“1. The State and parish tax collector was not made a party.
“2. The law under which the judgment was rendered for the tax and application of the tax was repealed by Act No. 56 of 1877. As a corollary, it was argued in the pleadings that said law being essentially a remedial law its repeal did in nowise impair the relator’s rights, but merely suspended or abolished one of the means by which his said vested right could be exercised or executed; it is, therefore, valid and constitutional. The judge directed the assessment of a special tax of one per cent and the police jury has appealed from it.
*1129“ Eirst. The State and parish tax collector was served and has joined issue, and is therefore a party.
“ Second. The Act of 1877 should be no bar to the exercise of the remedy accorded by law to the plaintiff, and which was in force at the time he obtained his judgment, and which', not only theoretically but practically, formed part of that judgment, provided that judgment be founded on a contract.
“The only evidence before us is the judgment itself. Neither the pleadings nor the evidence on which the judgment was rendered are in the record. The very petition in the present proceeding is silent on the subject of the obligation of the parish to pay the judgment as springing from a contract.” ’*******
“If the judgment relied upon was not founded on a contract, we would be powerless to enforce its payment in the manner proposed, prohibited, as we would be from so doing by article 209 of the Constitution of 1879, limiting taxation to ten mills, as was held in State ex rel. Folsom vs. City of New Orleans, recently decided.” * * *
“We think it our duty, in furtherance of the ends of justice, to remand the case in order that the relator may have an opportunity of establishing that his judgment is founded on a contract, if such be the case, and that the defendants may adduce such further evidence, and make such other defenses as the nature of the suit may require.”
It is clear to my mind, from the foregoing, that the object of remanding the proceeding to the lower court was to ascertain whether the judgment in question was founded on a contract or not. If it should prove, according to the evidence, to be adduced in the lower court — to be founded on a contract, then there was a strong implication, according to my construction, of the language of the former opinion just quoted, that, a contract being shown, as the basis of the judgment, then the relator would be entitled to the remedy sought, and the mandamus would be made peremptory.
It in effect said to the relator: return to the lower court, prove that your judgment was upon a contract, and receive your writ to compel its payment.
It is stated in the opinion of the majority of the Court just read, that the terms of the remanding did not authorize or mean a re-opening of the case, in which the judgment had been rendered, with a view to the admission of evidence affecting the merits or consideration of the judgment. Besides, it was beyond the power of this Court to remand for any such purpose. The judgment had been rendered for seven years or more, and a demand for its nullity had been rejected. It was res adjudicate, a finality conclusive as to the fact that the parish owed the relator the debt evidenced by the judgment. Whether it was a righteous *1130or an unrighteous debt was beyond inquiry. The only question left open to be asked and answered was: was the judgment founded on a contract, or did it grow out of a tort; for it must have been based on one or the other.
The case was remanded, the necessary inquiry made and the evidence adduced which, upon my mind leaves not the shadow of a doubt that the judgment against the parish of St. Martin, which the relator is here before us asking to be enforced, was founded on a contract; and in my opinion, he has fulfilled the sole condition on which the exercise of his right was suspended by our previous decree, by establishing that his judgment was founded on a contract. With this showing, I think he can now rightfully claim the remedy he seeks. To refuse it, would be, virtually, in my opinion, denying him the protection to which he is entitled under the clause of the Federal Constitution forbidding the impairment of a contract; a protection which this Court recognized as bearing on this question in its former opinion referred to, and more emphatically in the case of the State ex rel. Marlin vs. Police Jury of Caddo, 32 An. 1028, when it declared, referring to the obligations of another parish, that “the contract in existence between the bondholders and the parish of Caddo is protected from impairment by the Federal Constitution, and must be enforced.” This was the language of an unanimous Court, as was that quoted above from our former opinion in this case.
The judgment was rendered upon notes executed by the President of the police jury of St. Martin, and those notes given for the building of a bridge.
I see no reason for extending inquiry beyond those simple facts, as they, alone, have a bearing on this question of a contract. And in view of this single and simple issue, in the present state of the proceeding before us, I cannot readily appreciate the bearing and pertinency of the questions discussed in the majority opinion about the injustice of the debt or the hardship of its' payment by the debtor, particularly since it is admitted in that opinion that the judgment is res adjudicada. Nor do I find any thing in the course pursued by the relator’s counsel in the introduction of his evidence on the last trial in the lower court upon the question of contract or no contract, that opened the way to a broader investigation, and rendered the matter mentioned a legitimate subject of discussion in this case. All that he did in this connection strictly pertained to proving his contract.
It is highly probable, that if the considerations, now so ingeniously and ably urged touching this debt, had been used as defenses against the demand before judgment, the judgment would never have had an existence. This Court in the decision referred to in the suit of nullity cited (28 An. 578), declared that similar considerations, or others quite *1131as formidable, though urged in a proper action, and at a more seasonable time, could not be listened to. I am equally of that opinion now.
Nor can I see any thing in the failure or refusal of the judgment debtor — the parish of St. Martin- — -to obey the mandate of the Court embraced in the judgment, and levy the tax ordered to pay the debt at the time ordered, can now be held as giving the parish an immunity from the debt, and enabling it to so profit by the default, as virtually to destroy the remedy of the creditor, and leave him with a barren judgment, stripped of all means of enforcing it. Such I construe to be the effect of the decree just rendered, that it restricts him expressly to the tax ordered in 1873 by the judgment, when rendered, as the sole resource for getting his money, when it must be apparent that no such fund was ever raised, and had it existed, would long since have disappeared.
For these reasons, hastily prepared in the limited time allowed me, I dissent. ,